Why did the Kerala High Court acquit activist Rehana Fathima accused of sexually abusing her own children?

Fathima's video showing her son painting on her bare chest must be seen in the context of her opposition to the default sexualisation of the female naked body; such a depiction of nudity cannot be considered obscene or indecent, the Kerala High Court held. 

IN June 2020, activist Rehana Fathima posted a video showing her son aged 14 painting a phoenix on her semi-nude torso, while her eight-year-old daughter sat beside her painting on paper.

The video, uploaded on Facebook and YouTube with a hashtag 'Body, Art and Politics', triggered outrage against Fathima. Allegations levied against her of subjecting her children to an obscene and vulgar act flew far and wide.

In her defence, she argued that her actions were a form of self-expression and an attempt to break free from the social and cultural taboos that constrain women's bodies. The video was her attempt to expose the double standard prevailing in society regarding the default sexualisation of the female body as opposed to the male body.

Emphasising the significance of viewing the said video in the context of Fathima's larger message, Justice Dr Kauser Edappagath stated, "The mere sight of the naked upper body of the woman should not be deemed to be sexual by default. So also, the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent, or sexually explicit."

Soon after, Fathima was booked under provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO), the Indian Penal Code, 1860 (IPC) and the Information Technology Act, 2000. Charges against her included those relating to sexually assaulting a child who is a relative of the accused, distributing sexually explicit material involving children and cruelty towards a child.

Also read: Rehana Fathima case: A problematic bail order

This week, the Kerala High Court dismissed all charges against her.

Emphasising the significance of viewing the said video in the context of Fathima's larger message, Justice Dr Kauser Edappagath stated, "The mere sight of the naked upper body of the woman should not be deemed to be sexual by default. So also, the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent or sexually explicit."

What is obscene, indecent or sexually explicit under the law can be determined "only in the context" of the depiction. The context of the case lies in Fathima's political expressions and the artistic expression of her children, the court observed.

Nudity, obscenity and double standards

"We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent," the high court observed. "When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way."

Also read: Revisiting obscenity and pornography: Raj Kundra and the feminist discourse

Agreeing with Fathima's arguments, the Order records that "the intention of the petitioner in making and uploading the video was to expose this double standard prevailing in society."

It was also her intention to normalise the female body to prevent distorted ideas of sexualisation in the minds of children, she had submitted before the high court.

"We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent," the high court observed.

In her view, when children grow up seeing their mother's nakedness and body, they mature into viewing bodies not as sexual tools alone.

Stressing on bodily autonomy at the outset of the Order, Justice Edappagath opined that the body is the "most fundamental space" over which an individual has autonomy.

He further said, "The autonomy of the male body is seldom questioned, while the body agency and autonomy of women are under constant threat in a patriarchal structure.

"Women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives."

Previously, the implied right to bodily autonomy has been upheld by the Supreme Court in Justice K.S. Puttaswamy (Retd) versus Union of India (2018), in which case the court stated, "The right of a woman to make autonomous decisions about her body is at the very core of her fundamental right to equality and privacy."

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While nudity can of course be considered as obscenity, "they are not always synonymous. It is wrong to classify nudity as essentially obscene or even indecent or immoral," the court stated, holding that nudity or its portrayal cannot by itself attract the provisions of law that penalise obscene actions.

"When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way," said the court.

In this regard, the high court cited the seminal case that arose with the release of the film Bandit Queen (1994). In Bobby Art International versus Om Pal Singh Hoon (1996), the Supreme Court rejected the contention that the scene depicting the rape of Phoolan Devi was indecent within the meaning of Article 19(2) or the Cinematograph Act, 1952. Emphasising on the context of the scene, the court had held that the object of showing nudity of the humiliated victim was not to arouse prurient feelings but revulsion for the perpetrator.

To bolster its point about viewing nudity in the context in which it is placed, the court recorded that there are murals, statues and work of art of deities displayed in the semi-nude in ancient temples all over the country.

"Such nude sculptures and paintings freely available in public spaces are considered art, even holy," the court stated.

The court also noted that body painting on men is a tradition during the Puli Kali festival in Thrissur, Kerala. On that occasion, people painted as tigers, dance to the beat of drums and take out processions through the city. Fathima took part in the festival in 2016 as she wanted to "perform in a space dominated by men", the Order mentions.

In 2018, Fathima had attempted to reach the sanctum sanctorum of the Sabarimala temple after the Supreme Court ruled against the practice of allowing only women of non-reproductive ages in the case of Indian Young Lawyers Association versus The State Of Kerala (2018). Her attempt had been in vain, despite police protection, since devotees opposing her entry managed to stop her by forming a human shield comprising children.

The video should be seen in the context of her long history of battling patriarchy and hyper-sexualisation of women in society and the message accompanying the video where she argues that publishing the video is a response to a controlling, sexually frustrated society, the court said, dismissing her of the charge of sexually assaulting a child.

 "There is absolutely no reason to believe that an ordinary man viewing the video would become depraved, debased and encouraged to lasciviousness," the court added, using the terms deployed by Section 292 (sale, distribution and so on of obscene material) of the IPC.

A video that was made to protest against the default sexualisation of the female naked upper body "must necessarily show that naked body to convey the intention in making and uploading the video," it was observed.

Morality, legality and free expression

"The notions of social morality are inherently subjective. Morality and criminality are not coextensive," the high court observed, holding that an action that may be considered morally wrong may not necessarily be legally wrong.

In this regard, the court gave examples of strike down of Section 497 (Adultery) and the reading down of Section 377 (Unnatural offences) of the IPC. The actions that these provisions sought to penalise may still be considered unethical by certain people, but they now are legal "because law and morality are not equivalent to each other."

The Supreme Court in Joseph Shine versus Union of India (2018) had struck down Section 497 of the IPC which imposed culpability on a man engaged in sexual intercourse with another man's wife. However, adultery continues to be a ground for divorce.

Agreeing with Fathima's arguments, the Order records that "the intention of the petitioner in making and uploading the video was to expose this double standard prevailing in society."

In the same year, Section 377 was substantially read down by the Supreme Court in Navtej Singh Johar versus Union of India (2018). The provision criminalised all sexual acts "against the order of nature".

The unanimous Order of the court begins with the German thinker Johann Wolfgang's quote: "I am what I am, so take me as I am."

Taking the decisions in the above cases into consideration, the Kerala High Court observed, "Society's morality and some people's sentiments cannot be the reason for instituting a crime and prosecuting a person. An action is permissible if it does not violate any of the laws of the land," upholding Fathima's right to produce the video in question.

Also read: Books and Obscenity Trials

Though Article 19 of the Constitution, which guarantees certain rights regarding freedom of speech and expression, makes an exception for imposing restriction in the interest of decency and morality, the court having established that the video in question is not obscene or indecent, the question of restricting her speech did not arise.

Charges against Fathima

Charge: Section 9(n) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO); which is attracted when a person, being a relative of the child, commits sexual assault on the child.

'Sexual assault' is defined by the POCSO Act as touching the vagina, penis, anus or breast of a child with sexual intent or making a child touch the vagina, penis, anus or breast of that person or any other person with sexual intent and without penetration. Thus, sexual intent is sine qua non for the applicability of Section 7 of the POCSO Act and, consequently, Section 9.

Also read: Mandatory reporting of child sexual abuse offences: Call for reform in the POCSO Act

Reason for dismissal: The video should be viewed in the context of the message accompanying it where Fathima argues that the naked body is a response to "a controlling, sexually frustrated society" and her long history of battling patriarchy and hyper-sexualisation of women in society.

The statement of Fathima's children also point out that they were not sexually exploited in any manner or that Fathima permitted art to be made on her body with a sexual motive. In fact, her male child had stated that it was him who requested his mother to let him paint on her body.

"[N]o sexually explicit act has taken place in the facts and circumstances of the case. No evidence for the same exists anywhere," the high court noted, adding that painting on the naked upper body of any person cannot be stated to be a sexually explicit act.

"There is nothing on record to even remotely indicate that the petitioner did the said act with any sexual intent," the high court concluded, dismissing her of the charge.

Charge: Section 13(b), made punishable under Section 14 of the POCSO Act; which is attracted when a person uses a child in any form of media for the purpose of sexual gratification, which includes the usage of the child in real or simulated sexual acts, with or without penetration.

Reason for dismissal: The allegation that Fathima made her two children paint on her naked upper body, videographed the same and then uploaded the said video on the internet is not enough to attract this provision since "it is not possible for anyone to infer or impute that the children were used for any real or simulated sexual acts, that too for sexual gratification," the court stated.

"To term this innocent artistic expression to be 'usage of a child in real or simulated sexual act' is harsh. There is nothing to show that the children were used for pornography. There is no hint of sexuality in the video," it was observed.

The offence under Section 13(b) read with Section 14 is not made out, the high court said, considering that Fathima had made clear in the accompanying video that the purpose of the video was to make a political point against the default sexualisation of women's bodies.

Charge: Section 15 of the POCSO Act; which deals with possession or storage of pornographic material involving children for the purpose of displaying or distributing in any matter.

Reason for dismissal: "In the video, the children are not naked… They were participating in a harmless and creative activity," the court stated, adding, "There is nothing in the video that could be called pornographic. Hence, the offence under Section 15 also would not lie."

In a different part of the Order, Justice Edappagath notes his description of the contents of the video. "I viewed the video in the open [c]ourt. The two-minute video shows the petitioner's son carefully, with utmost professional concentration, painting the image of a phoenix in the upper part of her body, starting from between the breasts and flowers around both nipples. A little girl is also seen in the video painting on paper."

Charge: Section 67A and 67B of the Information Technology Act, 2000 criminalises the publishing or transmitting of material depicting sexually explicit acts, with Section 67B being attracted when the said act involves children.

Reason for dismissal: "As stated already, no sexually explicit act has taken place in the facts and circumstances of the case. No evidence for the same exists anywhere," the high court noted, adding that painting on the naked upper body of any person cannot be stated to be a sexually explicit act.

Charge: Section 75 of the Juvenile Justice (Care And Protection) Act, 2015 (JJAct): which deals with punishment for cruelty to children.

This section applies to a person having the actual charge of or control over a child and that person assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be subjected to any of the above.

Reason for dismissal: "Admittedly there is no assault or abandonment of the child. It cannot also be said that the act alleged is abuse or exposition, or neglect of the child."

On whether the charge of exposition would apply, the court said it only would when the child has been deprived of shelter or care. "Therefore, none of the acts contemplated in the above provision have taken place at all," added the court.

The child's perspective of unnecessary mental or physical suffering is necessary to constitute the offence under Section 75 of the JJ Act, the court noted, citing the text of the provision,. "There is no such allegation in the statements given by the children".

Through the eyes of children

"The statement of the children shows that they are in loving care of the petitioner. The children are exposed to prosecution against their own mother contrary to their wishes," the high court said, expressing concern that prosecution of Fathima will have torturous effects on her children.

Setting aside the order of the Ernakulum sessions court which had refused to quash the charges against her, the high court said, "The court below completely overlooked the context in which the video was published and the message it had given to the public at large. The impugned Order is, accordingly, set aside and the petitioner is discharged."

"As rightly reasoned by the petitioner … just as beauty is in the eyes of the beholder, so is obscenity," the court recorded.

Click here to read the Kerala High Court's order in XXX versus State of Kerala CRL.REV NO. 433 OF 2022